Domestic Violence Crimes: A Defense Perspective

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By the time this article goes to print, the Ray Rice incident will have been pending for months, the case against Cardinal’s player Jonathan Dwyer will be in full swing (pun intended) as he faces felony charges, and domestic violence will still be actively reported in the media. In any government building, even court buildings, posters are all over the walls to remind someone to report and prosecute DV crimes. With radio and public service announcements, October 2014 was noteworthy for being Domestic Violence Awareness Month.

Prosecutors and law enforcement have specialized family violence bureaus that handle DV crimes. The federal government continues to provide substantial grants to prosecute DV crimes. As a defense attorney, domestic violence was difficult to defend before the NFL and the media put it front and center. Now, under heightened scrutiny, the mere allegation of domestic violence should scare anyone facing prosecution.

Jaburg Wilk

My clients are supposed to be presumed innocent. But, when allegations of DV are involved, I can honestly say a substantial percentage of my clients have truly committed no crime. However, in these current times, my clients are arrested, charged and prosecuted. In more than two decades representing those accused of DV crimes, I have developed strategies and tactics to protect my clients. So, what can you do when your client stands accused of a DV crime?

Does The Victim Have A Motive?

I have seen several common motives that need to be acknowledged, investigated and presented to prosecutors or, if at trial, the fact finder. The victim can use the charges alone to seek changes in custody or visitation. The victim may use their victim status to seek a delay or even prevent their deportation. In developing your defense, you need to search for any motive or benefit the victim may have in raising their claims.

You need to develop your argument without the ability to directly research or investigate the victim. Because victims have constitutional protections (A.R.S. Const. Art. II, § 2.1 , See also, ARS 13-4402 et seq.), any request for information must be made through the prosecutor’s office. You cannot actively engage the victim in any social media. However, you can and should research whether the victim is posting any comments in a public forum. And, if so, make sure you print any and all records.

As defense counsel, you are prohibited from directly contacting the victim and prohibited from unilaterally seeking subpoenas to obtain medical, insurance, school or any other type of record. Any request for these records must be made through the prosecutor’s office. And, when prosecutors commonly respond that it is privileged or not in their possession, you need to be prepared to litigate the issue.

Proving Injury or Damage

The difference between felony and misdemeanor charges may be the type of injury or the amount of damage. As noted above, it is imperative you do all you can do to corroborate the victim’s claims. As you are prohibited from directly seeking victim information, you may find their statements made to fire, medical or insurance agents extremely helpful.

Proving Alibi or Self-defense In many instances, my client has preserved evidence of their injuries. My clients have photos and medical records documenting their claims of self-defense. In many instances, my client’s bruising is not apparent on the day of the event, but rather appears within 24 hours. It is imperative to document the size, color and location of any injury. Alibi may be established by acquiring the cell tower information from your client’s cellphone or established from their use of credit cards or text messaging. Remember these are affirmative defenses that must be raised in your notice of defenses.

Victim Wants To Help

In many DV cases, the victim realizes how overblown the case becomes. All they wanted was the person out of the house. They often don’t realize calling police results in an arrest and prosecution. Although non-DV misdemeanors can be dismissed via a misdemeanor compromise (13- 3981), DV crimes are an exception. They can only be dismissed by compromise upon a recommendation from the prosecutor. However, I can’t recall the last time a prosecutor agreed to dismiss the matter pursuant to a misdemeanor compromise.

I still prepare the compromise paperwork and submit it to the prosecutor and the court. The formal submission of the compromise paperwork is often useful in seeking a better plea offer or making a stronger argument for a dismissal rather than a continuance when the victim fails to appear at trial.

Orders of Protection Are Your Friend

When you can’t otherwise interview the victim, requesting and conducting an evidence hearing on an order of protection can be invaluable. There is no prosecutor present. And, in most cases, I am able to seriously challenge the victim’s claims. I prepare my client for the fact that he will likely lose, and advise him that he likely need not testify. My normal goal at the hearing is solely to attack the victim’s story.

Given the political nature of DV prosecutions, mounting a strong defense requires you to think outside the box and not be afraid to litigate the case. Should you have any question about defending a DV case, please give me a call.

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